Wiley L. Barron, CPA, Ltd. - Page 22




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               Second, eligibility for relief under section 530(a)(1)                 
          requires that the taxpayer have a reasonable basis for not                  
          treating the service provider in question as an employee.  This             
          requirement may be established by the particular facts and                  
          circumstances of the case or by reference to one of the three               
          “safe harbors” described in section 530(a)(2).                              
               We recognize that the Congress intended that “this                     
          reasonable basis requirement be construed liberally in favor of             
          taxpayers.”  H. Rept. 95-1748, 1978-3 C.B. (Vol. 1) 629, 633.               
          However, it has been held that an S corporation’s treatment of              
          its president as a shareholder, rather than as an employee, was             
          unreasonable within the meaning of section 530 where the                    
          president “was, for all practical purposes, the central worker              
          for the taxpayer.”  Spicer Accounting, Inc. v. United States, 918           
          F.2d 90, 95 (9th Cir. 1990).  There the Court of Appeals                    
          concluded that “it is clear that Mr. Spicer failed to satisfy               
          this [reasonable basis] standard, however liberally construed.”             
          Id.  Similarly, because Mr. Barron was “the central worker” for             
          petitioner and provided substantial services, and further because           
          sections 3121(d)(1) and 3306(i) unambiguously state that a                  
          corporate officer is an employee, we conclude that petitioner’s             
          treatment of Mr. Barron was unreasonable.                                   
               Petitioner relies on Durando v. United States, 70 F.3d 548             
          (9th Cir. 1995), in support of its treatment of Mr. Barron.  That           






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